Library and Archives Canada Cataloguing in Publication
Elections Canada
Preventing deceptive communications with electors – Recommendations from the Chief Electoral Officer of Canada following the 41st general election [electronic resource]
Electronic monograph in PDF format.
Issued also in French under title: Prévenir les communications trompeuses avec les électeurs –Recommandations du directeur général des élections à la suite de la 41e élection générale.
Issued also in printed form.
ISBN 978-1-100-21939-4
Cat. No. : SE3-78/2013E-PDF
2. Elections
— Canada.
3. Elections
— Corrupt practices — Canada.
4. Political campaigns
— Canada.
5. Canada. Parliament
— Elections, 2011.
6. Election law
— Canada.
I. Title.
II. Title: Recommendations from the Chief Electoral Officer of Canada following the 41st general election.
JL193 E43 2013 324.60971 C2013-980031-X
© Chief Electoral Officer of Canada, 2013
All rights reserved
For enquiries, please contact:
Public Enquiries Unit
Elections Canada
257 Slater Street
Ottawa, Ontario
K1A 0M6
Tel.: 1-800-463-6868
Fax: 1-888-524-1444 (toll-free)
TTY: 1-800-361-8935
www.elections.ca
The Honourable Andrew Scheer
Speaker of the House of Commons
Centre Block
House of Commons
Ottawa, Ontario
K1A 0A6
Dear Mr. Speaker:
Please find enclosed my report
This report is in response to incidents that occurred during the 41st general election of May 2, 2011, involving deceptive communications with electors. The report is made pursuant to section 535 of the
Canada Elections Act and proposes amendments that, in my opinion, are desirable for the better administration of the Act.
Under section 536 of the Act, the Speaker shall submit this report to the House of Commons without delay.
Yours truly, Marc Mayrand
Chief Electoral Officer
The Chief Electoral Officer • Le directeur général des élections
257 Slater Street/257, rue Slater, Ottawa, Canada K1A 0M6 • 613-993-2975 Fax/Télécopieur : 613-993-5380 1-800-463-6868 TTY/ATS 1-800-361-8935 www.elections.caTable of Contents 5
Table of Contents
Introduction
................................................................................................................................... 7
1. Chronology of Events ............................................................................................................. 9
2. Legal Context ........................................................................................................................ 15
3. Investigation Challenges....................................................................................................... 25
4. Recommendations................................................................................................................. 29
Conclusion ................................................................................................................................... 41
Annex ........................................................................................................................................... 43Introduction 7 Introduction
This report is in response to incidents that occurred during the 41st general election of May 2, 2011, involving deceptive communications with electors. While the investigation by the Commissioner of Canada Elections remains ongoing and the full scope of these incidents as well as the identity of persons involved remain to be established, the nature of the conduct that took place is well known. The public reaction to those incidents demonstrates the importance that Canadians attach to the integrity of their electoral process and the need to take steps to prevent a recurrence of such tactics in the future.
This report is the first of two thematic recommendations reports following the 41st general election. Given the importance of the matters at stake and the need to implement measures in time for the next general election, it was necessary to deal immediately with the issue of deceptive communications. A subsequent report will more broadly address the need to review and modernize the compliance and enforcement mechanisms in the
Canada Elections Act with a view to making them more effective and better tailored to the regulatory nature of the regime. We plan to present this second report in the spring of 2014.
As indicated to the Standing Committee on Procedure and House Affairs on March 29, 2012, the purpose of this first report is to examine preventive and enforcement measures that should be taken to deal with deceptive communications. While some of the measures proposed in the report are administrative, the majority require legislative changes.
The report builds on a discussion paper released in early November 2012. In preparing the report, Elections Canada consulted Canadian electors and used the discussion paper to engage political parties as well as experts on the matters at play. The aim was to capture their concerns and insights with respect to communications with electors by Elections Canada and political entities, in the context of the electoral process.
A firm was retained to conduct a telephone survey with 1,011 electors within the general population. The purpose of the survey was to evaluate the opinions and attitudes of electors on a number of questions related to communications with electors. That survey was conducted from November 21 to December 2, 2012. The full report on the survey may be found on Elections Canada’s website at www.elections.ca.
As well, Elections Canada entered into a contract with the Institute for Research on Public Policy (IRPP), a think tank based in Montréal, to convene and facilitate a day-long roundtable discussion with experts and practitioners from a range of disciplines. The purpose of this roundtable was to provide information and advice to the Chief Electoral Officer on how the Canadian electoral process could be improved in the future. A link to the report of the IRPP may also be found on Elections Canada’s website at www.elections.ca.
In responding to the events that took place at the last election, it is important to achieve a proper balance between competing values and interests. New technology offers tremendous opportunities for political parties and candidates to gather information, in order to target and
8 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
reach out to electors. More importantly, for electors, communications from and with candidates and parties are fundamental to their effective participation in the electoral process, which is the very essence of the right to vote. In both the survey of electors and the roundtable discussion, it was broadly recognized that the ability to effectively communicate with electors is critical. At the same time, however, Canadians and experts strongly endorse the view that respect for the privacy of electors and the preservation of trust in the integrity of the electoral process are essential.
In this regard, our regime needs to be improved. While political parties and candidates must continue to be able to communicate with electors effectively, measures are required to provide basic privacy protections and help prevent deceptive communications.
As well, the challenges experienced in investigating the deceptive calls that were made during the 41st general election have demonstrated the need for better tools to assist the Commissioner in conducting investigations. Recommendations are made in this report for tools that are already available in the federal context for other regulatory regimes and that are available to a number of electoral management bodies in other jurisdictions.
Of course, legislative measures alone cannot prevent improper conduct from taking place. All participants in the electoral process have a responsibility to act in a manner that respects and promotes democratic values and the rule of law.
For electors, the revelation of various scandals, at both the federal and provincial levels, involving illicit fundraising methods, abuse of spending limits and deceptive communications tactics, raises disturbing questions. The issue is not simply one of compliance with legal requirements, but also respect for values of fair play. The line separating conduct that is a normal part of a healthy and vigorous electoral competition from conduct that undermines the legitimacy of the election is at risk of becoming increasingly blurred and uncertain.
In this regard, the fact that, in the context of the survey referred to above, electors are more likely to indicate that they have not very much confidence (46%) or no confidence (10%) in federal political parties should be of concern to all. For this reason, the report goes beyond strict concerns over legal requirements and recommends that consideration be given to the adoption of codes of conduct by political parties that would set out rules of behaviour for political parties and their supporters.
But codes of conduct are not enough. The electoral legislation must be sufficiently robust, not only in terms of the penalties but also of the tools available to effectively uncover acts of wrongdoing. If it is not, there is a real danger that participants will increasingly take the position that it is more advantageous to ignore the rules than to respect them, particularly if they are under the impression that their opponents are not abiding by these rules. While trust in the electoral process remains high (85% as per the survey of electors), it should not be taken for granted. Ultimately, what is at stake is the ability of the electoral process to play its fundamental role of legitimizing political power.
1. Chronology of Events 9
1. Chronology of Events
The recommendations contained in this report aim to address various forms of deceptive communications with electors and are not restricted to the specific acts that took place in the 41st general election. Nonetheless, it is important to provide the context that gave rise to this report and the recommendations it puts forward. This part of the report reviews what the investigation has so far publicly disclosed about what happened in Guelph and in other electoral districts, as well as various actions taken in Parliament and through the courts as a result.
Initial calls and complaints (Guelph and elsewhere)
The agency also received other complaints alleging numerous, repetitive, annoying or sometimes aggressive live or automated calls, as well as calls made late at night, on a religious holiday or from American area codes. These calls were purportedly made on behalf of candidates whose campaigns have subsequently often denied making the calls.
In one case, a professional call centre has since acknowledged that some electors were given erroneous information concerning their polling location based on inaccurate or outdated data.
Investigation of the Guelph complaints
The information that follows is already publicly known.
1 It is summarized here to the extent necessary to provide context for the report, and not to suggest or prejudge the result of the investigation.
1
The following is based on information that was made publicly available through court records in the course of the Commissioner of Canada Elections’ investigation.
Numerous complaints were received about telephone calls made to electors in the electoral district of Guelph, around 10 a.m. on May 2, 2011. The caller was described as a recorded female voice claiming to call on behalf of Elections Canada. The message was that due to a projected increase in poll turnout, the elector’s voting location had been changed to another address. There was no truth to these calls. The caller was not representing Elections Canada, and no polling locations had been moved in that district.
The calling number that appeared on the call display of recipients’ phones was the same for all recipients. Through the investigation, it was later found out that this number was assigned to a pay-as-you-go cell phone that was activated on April 30, 2011. The subscriber’s name in Bell Canada’s records is Pierre Poutine of Separatist Street in Joliette, Quebec. There is no such name or street in Joliette.
10 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
The investigation established that Pierre Poutine’s phone only ever called two phone numbers, both of which are assigned to a voice broadcasting vendor in Edmonton that also provided services to the campaign of a candidate in Guelph.
The individual initiating the calls was accepted by the voice broadcasting vendor as a client. Records from the vendor show that 7,676 calls were made to Guelph telephone numbers between 10:03 and 10:15 a.m. (Eastern Daylight Saving Time) on May 2, 2011, bearing the calling number assigned to this individual. The list of numbers that were called is consistent with a list of non-supporters of a political party that could have been obtained from that party’s database.
The individual used a different false name and address in his communications with the voice broadcasting vendor (Pierre Jones of 54 Lajoie Street in Joliette, Quebec). There is no such address in that city.
The individual used PayPal to pay for the services rendered by the voice broadcasting vendor and gave PayPal that same false name and address. Payments (totalling $162.10) were made using three separate prepaid Visa cards purchased from two different Shoppers Drug Mart stores located in Guelph. All were made from a computer through a proxy server using the same IP address,
2 which allows the originating sender to disguise the location of the computer. The individual also used the proxy server to communicate with the voice broadcasting vendor on some occasions.
2
An Internet Protocol (IP) address is a numerical address assigned to each computer device that uses the Internet Protocol for communication on the Internet. The IP address can provide the physical address of a computer connected to the Internet through access to records of the Internet service provider.
On other occasions, the individual communicated with the voice broadcasting vendor using an IP address associated with the campaign office of a candidate running in the electoral district of Guelph. Personnel at the campaign office used the same IP address to communicate legitimately with the voice broadcasting vendor, and also with a political party to access its database.
The calls made to electors were transmitted from the voice broadcasting vendor using VoIP (voice over Internet Protocol) calling technology. VoIP calling is computer-generated calling over the Internet to recipients’ telephones. This technology allows a voice broadcasting vendor to program into the call process any calling number its client wishes to be displayed on a recipient’s call display. That number could have nothing to do with the actual call made by the vendor.
Disclosure by the media in February 2012 of court documents related to the investigation
Following the disclosure of the above information in articles first published in the media on February 23, 2012, and on following days, more than 40,000 communications were received from electors. Most of these communications expressed outrage that individuals would try to weaken the electoral process by making false and misleading calls to electors. However, a significant number of individuals from electoral districts across Canada made specific complaints regarding improper calls.
1. Chronology of Events 11
Investigation of complaints received from individuals in other electoral districts
Complaints with respect to inappropriate calls outside Guelph were received over a longer period of time than was the case in Guelph. While some complaints were received during the 41st general election and in the months following the election, the Commissioner of Canada Elections
3 received over a thousand reports from complainants outside Guelph following the February 23, 2012, story in the media.
3
The Commissioner of Canada Elections is a statutory officer responsible for the enforcement of the Canada Elections Act as well as the Referendum Act. He is appointed by the Chief Electoral Officer pursuant to section 509 of the Canada Elections Act.
4
This number reflects instances of alleged improper phone calls reported by electors, as opposed to expressions of outrage or calls for action. In his appearance of May 29, 2012, before the Committee, the Chief Electoral Officer indicated that the number of complaints regarding alleged fraudulent calls then exceeded 1,100. It now stands at just over 1,400.
Some complainants reported having received either live or recorded telephone calls on or around polling day, which many recall as claiming to be from officials calling on behalf of Elections Canada, advising the call recipients that their polling station had been changed. In almost all cases, the purported polling station was farther away from the elector’s place of residence and less convenient for the elector to reach.
Some complainants also reported having received annoying calls during the weeks leading up to polling day, typically at inopportune times of day or made in a series of calls to the same complainant, purportedly seeking support for a particular candidate or federal political party. Representatives of political parties and of candidates in whose names the calls were ostensibly made were subsequently contacted by Elections Canada investigators, and in most cases, the persons contacted denied making or being a party to such calls.
Appearance of the Chief Electoral Officer before the House of Commons Standing Committee on Procedure and House Affairs
As a result of the media reports of February 2012 and of the public debate that followed, the Chief Electoral Officer asked to appear before the Standing Committee on Procedure and House Affairs to explain key aspects of Elections Canada’s administrative and investigative processes. This appearance took place on March 29, 2012.
On that date, the Chief Electoral Officer reported that the number of complaints alleging specific occurrences of improper or fraudulent calls was near 800.
4 He also committed to submitting a report, no later than March 31, 2013, that would examine the challenges posed by such calls and recommend improvements to the legislative framework.
Other related events
On March 12, 2012, the House of Commons unanimously passed a motion that reads as follows:
That, in the opinion of the House, the government should, within six months, table amendments to the Elections Canada Act [sic] and other legislation as required that would ensure that: (a) Elections Canada investigation capabilities be strengthened, to include giving the Chief Electoral Officer the power to request all necessary documents from political parties to ensure compliance with the Elections Act; (b) all telecommunication companies that provide voter
12 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1. Chronology of Events 13
Electoral Officer or the Commissioner of Canada Elections upon request. It would further require that a company or other persons contracted to transmit voice messages provide certain information to the Chief Electoral Officer. The proposed enactment also makes it an offence to contravene these provisions. The bill has not yet received second reading.
Current status
The Commissioner has received complaints from more than 1,400 electors in 247 electoral districts, who report having received calls misdirecting or misinforming them with respect to their correct polling station, or calls they described as rude, harassing or annoying, received at an inopportune time of day or on multiple occasions. This includes 252 complainants from the electoral district of Guelph. The investigation is ongoing, and at the time the report went to press, no charges had been laid.
2. Legal Context 15
In order to understand the implications of the deceptive calls made during the 41st general election and the need for legislative reform, it is necessary to provide, in summary fashion, an overview of the rules that currently apply – or do not apply, as the case may be – to such conduct. This part of the report sets out relevant parts of the
Canada Elections Act, indicates that the main pieces of federal privacy legislation do not apply to political parties, and explains how provisions of the Telecommunications Act and a number of the Unsolicited Telecommunications Rules of the Canadian Radio-television and Telecommunications Commission (CRTC) dealing with telemarketing or automated calls do apply to political entities. Finally, it refers to certain offences set out in the Criminal Code.
A.
Canada Elections Act
Communications with electors by political entities are essential to the democratic process. For political parties and candidates, the purpose of an election campaign is to convince electors to vote and to vote for a particular candidate. This is done through a number of means, and for many, the direct contact between candidates or their team and the elector remains an essential component of the campaign.
To facilitate these communications, Parliament has included a number of provisions in the Act requiring the transmittal of elector information to parties, candidates or members of Parliament through lists of electors (sections 93, 104.1, 107, 109 and 45). These lists contain the name, addresses (mailing and civic) and numerical identifier of each elector.
7 They do not contain elector telephone numbers.
7
Four of these lists are given to candidates and parties during the election period (the preliminary lists, the updated preliminary lists, the revised lists and the official lists). The final lists, produced after the election, are given to registered parties that endorsed candidates in the electoral districts and to members of Parliament for their respective districts. Members of Parliament also receive an annual copy of the lists of electors for their respective districts, as do parties that request one, provided they endorsed a candidate in that district in the last election.
The Act imposes no obligations on the recipients of the lists with respect to protecting and controlling access to the personal information they contain. Nevertheless, Elections Canada provides administrative guidelines that include best practices to protect the personal information found on the lists. However, these guidelines are not enforceable.
Elections Canada has limited information on how this and other personal information is managed by political parties. There is little public knowledge about the manner in which the information is collected, the sources of the information, whether the information is shared and with whom, the purposes for which it is used, and whether there are measures put in place by the parties to control or limit the use made of this information. The agency understands that there are a number of commercial software packages on the market that allow political parties to more easily merge
16 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election Elections Canada also understands that, in certain cases, local campaigns and the parties to which they are affiliated share the elector information in the party’s database to increase the information available to both entities for that electoral district. The primary purpose of parties’ use of these databases is to build a record of their supporters (and of their non-supporters) to facilitate communication with electors during campaigns, for example, to get the vote out.2. Legal Context 17 18 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election While returning officers may have preliminary discussions with landlords for the rental of the premises, they may not enter into a lease prior to the issue of the writs unless authorized to do so by the Chief Electoral Officer, usually not before the election is imminent. 2. Legal Context 19
Other Elections Canada communications with electors during the election period
While Elections Canada does not communicate with electors individually except through the VIC, it does launch an extensive multi-platform campaign to provide electors with all the information they need on registration, the various voting options, and voter identification requirements so they can vote during an election.
The campaign includes a number of communication vehicles, such as advertisements on television, in newspapers, on the radio, on billboards in public places and on popular social media websites. Advertising is complemented with the mailing of VICs to all registered electors and a reminder brochure to all Canadian households, a comprehensive website and public enquiries services, as well as a network of community relations officers across the country who work with specific target groups of electors – namely, youth, Aboriginal and ethnocultural communities, homeless electors and seniors – to raise awareness about the electoral process.
Contested elections
The fact that the election was contested in a number of electoral districts as a result of alleged fraudulent communications warrants a few explanations about the legislative framework for contesting elections under Part 20 of the Act
. Unlike a judicial recount – which merely serves to verify that the results that were validated by the returning officer properly reflect the preferences expressed on the ballots – a contested election puts into question the validity of the election. An election may be contested on the basis that the winning candidate was not eligible to be a candidate, or that there were irregularities, fraud or corrupt or illegal practices that affected the result of the election (section 524).
Where it has been established that the winning candidate was ineligible to be a candidate, the court hearing the application must declare the election null and void. However, where it has been established that the result of the election was affected by irregularities, fraud or corrupt or illegal practices, the court may annul the election, but is not bound to do so (section 531). In exercising its discretion under subsection 531(2) to annul or not annul an election, a court must consider whether the irregularities (or fraud, or corrupt or illegal practices) raised doubts about the winner
or whether the integrity of the electoral process would be called into question.24
24
Opitz v. Wrzesnewskyj, [2012] S.C.C. 55, para. 23.
25
These principles are set out in Schedule 1 of PIPEDA and have been reproduced in the annex to this report.
B. Other relevant legislation
Privacy Act
and Personal Information Protection and Electronic Documents Act
The
Privacy Act and the Personal Information Protection and Electronic Documents Act (PIPEDA) set out the general principles governing the collection, use, disclosure and retention of personal information. These principles reflect internationally recognized standards.25 20 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 2. Legal Context 21 However, the majority of electors do not believe that it is important for political parties to collect personal information on electors.22 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
"Telemarketing" is defined in the Rules as the use of telecommunications facilities to make unsolicited telecommunications for the purpose of solicitation; and "solicitation" means the selling or promoting of a product or service or the soliciting of money or money’s worth. Therefore, the Telemarketing Rules apply to political entities when soliciting donations, but not when they are asking for the electors’ support at the polls. Nor would the rules apply to get-out-the-vote calls.
The Telemarketing Rules provide for:
Prior registration of a telemarketer making calls on its own behalf and of a telemarketer’s client on whose behalf the calls are made.
•
Maintenance of an internal DNCL by a telemarketer acting on its own behalf or by a client of a telemarketer.
•
Adding a consumer’s name and number to the internal DNCL within 31 days of the consumer’s do not call request.40
•
At the beginning of a voice telemarketing telecommunication, providing the name or fictitious name of the individual making the call, the name of the telemarketer and the name of the client.
•
Upon request during a voice telemarketing telecommunication, providing a voice telecommunications number that allows access to an employee or other representative of the telemarketer and of the client. The name and address of an employee or other representative must also be given upon request.
•
Restricting telemarketing telecommunications to certain hours of the day (9 a.m. to 9:30 p.m. on weekdays and 10 a.m. to 6 p.m. on weekends).41
•
The telemarketer displaying the originating phone number or an alternate number where the telemarketer can be reached.
40
This issue is dealt with in the CRTC fact sheet mentioned supra at footnote 35. It indicates that "[a] constituent’s request to have their name and phone number added to the internal do not call list of a party or candidate, or those making calls on their behalf, must be honoured at the time of the call. Callers must update their internal do not call list within 31 days."
41
These hours are subject to provincial legislation governing this type of activity. The Phoenix survey of electors referred to supra at footnote 31 indicates that 40% of electors prefer to be contacted between 5 p.m. and 9 p.m. (p. 3).
Automatic Dialing-Announcing Device Rules
It is important to note that the ADAD Rules, also made pursuant to section 41 of the
Telecommunications Act, apply whether or not the telemarketing telecommunication is exempt from the National DNCL Rules. Therefore, they apply to political entities.
An ADAD is defined in the Unsolicited Telecommunications Rules as "any automatic equipment incorporating the capability of storing or producing telecommunications numbers used alone or in conjunction with other equipment to convey a pre-recorded or synthesized voice message to a telecommunications number". It produces what are sometimes referred to as robocalls.
2. Legal Context 23
A person using an ADAD to make unsolicited communications where there is no solicitation must nevertheless comply with a number of conditions. The most relevant conditions for the purposes of this report are the following:
•
There are restrictions on the hours during which such telecommunications can be made (9 a.m. to 9:30 p.m. on weekdays and 10 a.m. to 6 p.m. on weekends).42
•
The call must begin with a clear message identifying the person on whose behalf the telecommunication is made. This message must include a mailing address and a local or toll-free telecommunications number at which a representative of that person can be reached. If the actual message relayed is longer than 60 seconds, the identification message must be repeated at the end of the telecommunication.
•
The telecommunication must display the originating telecommunications number or an alternate telecommunications number where the telecommunication originator can be reached.
42
These hours are subject to provincial legislation governing this type of activity.
43
Election Accountability Amendment Act, 2012, S.A. 2012, c. 5, assented to December 10, 2012. Section 46 of that Act amends section 134 of the Alberta Election Act.
The regime provides for administrative monetary penalties as the main enforcement tool (see sections 72.01 to 72.15 of the
Telecommunications Act). Because such penalties are imposed directly by the CRTC and not under a criminal court process, and therefore are not accompanied by the full panoply of rights and protections granted to suspects and those accused of offences prosecuted in criminal court, they can be imposed with speed and efficiency by the CRTC.
The CRTC’s investigative powers regarding a violation of the provisions on unsolicited telecommunications are found at sections 72.05 and 72.06 of the statute. A person designated by the Commission to issue notices of violation may enter and inspect, at any reasonable time, any place in which he or she believes on reasonable grounds there is any document or information relevant to the enforcement of the rules. That individual may also use or cause to be made use of any data processing system at that place to examine any data contained in or available to the system, and the records contained in the system may be copied or reproduced.
A person authorized to issue notices of violation may also require that anyone whom he or she believes is in possession of information necessary for the administration of the Unsolicited Telecommunications Rules submit information to him or her in the manner that he or she specifies.
It is worth noting that in recent amendments to its
Election Act,43 the Alberta legislature has imposed its own requirements on advertisements transmitted to a telephone, whether in the form of a live call or an automated pre-recorded call. It requires that the telephone number of the sponsor be capable of being displayed on the call display of persons called; that the name of the sponsor and the sponsor’s party affiliation be stated at the beginning of the advertisement; that the advertisement state whether the sponsor has authorized the advertisement; and that the 24 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 3. Investigation Challenges 25
3. Investigation Challenges
In order to understand the rationale for the recommendations made in this report, particularly those involving legislative changes, it is essential to provide an overview of some of the challenges faced by Elections Canada’s investigators in their search for the source of the improper calls made during the last general election. Some of these challenges are unavoidable, especially as regards the current state of the technology. Others are reported more to give an idea of the complexity of the investigation and the inherent delays in obtaining the evidence required to take enforcement measures than for the purpose of changing the regime. Still, a number of improvements to the legislative framework could be made to facilitate the investigative process.
A. Lack of contractual information on local and national campaigns
Current limits to the degree of mandatory reporting to Elections Canada
The data contained in the election expenses returns filed by political parties is currently very limited and does not include specific information, such as contracted communications or telemarketing services, that could provide guidance to an investigation. While party returns include details on the contributions received, parties’ election expenses are grouped into broad categories, and the return provides no or little breakdown about how these expenses were incurred. This is something Elections Canada intends to remedy before the next general election. More importantly, however, under current legislation, federal political parties are not required to submit any supporting document in relation to their expenses, nor can such documentation be requested of them.
45
45
In the 2010 recommendations report, the Chief Electoral Officer recommended that he or she be able to request that registered political parties provide any documents and information that may, in the Chief Electoral Officer’s opinion, be necessary for verifying that the party and its chief agent have complied with the requirements of the Act with respect to the election expenses return. See Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election, recommendation II.1.
46
The Act allows the Chief Electoral Officer to request additional documentation in support of the expense. As a general rule, the contents of an advertisement are not relevant for that purpose.
By comparison, candidates’ returns and accompanying documentation are more complete and may show that a telemarketing firm was retained for making calls to electors. However, the purpose for which the firm was retained and the text of the messages communicated to electors is not available as part of the return since the reporting of this information is not required under the
Canada Elections Act.46 Moreover, as candidates’ campaign returns need not be filed until four months after polling day (section 451), any information contained in the returns regarding arrangements with service providers may arrive too late to be of any significant assistance to an investigation. 26 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
The cases Elections Canada has investigated seem to indicate that major parties deal with their own stable of telemarketing firms. Candidates’ campaigns gain access to these firms through referrals by the party. However, while invoices from the party may be submitted with the candidates’ campaign returns, the Act does not require that these returns also include the original contracts entered into with telemarketing firms regarding the services to be provided by the firms, when and at what cost. As such, little if anything is known from the returns about the specific services rendered by telemarketing firms, to either political parties or candidates.
B. Technological means to prevent traceability or identification
Current technology offers several ways by which persons who do not want to comply with the rules can escape detection. This means that, even where there are applicable legislative or regulatory requirements such as the CRTC’s Unsolicited Telecommunications Rules, these requirements can in practice be evaded using various technological means of anonymity. The solution to these problems may be more in the advancement of technology than in the introduction of new rules.
Voice over Internet Protocol technology
The current state of the technology allows callers to hide the origin of a call by causing a fake number to appear on the recipient’s call display ("spoofing"). This limits the ability for VoIP calls to be traced back to the caller. The technology has so evolved that it is possible to set up a VoIP call centre from almost anywhere, including a home, with a newer computer, some servers and access to call lists.
47
47
However, it should be noted that the system used in the case of Guelph was that of an existing, known voice broadcasting vendor that kept its own records of calls made and has co-operated with investigators.
Proxy servers
Anonymity can also be facilitated through the use of proxy servers that function as an intermediary between the originator of a message and its intended destination when communicating over the Internet. Proxy servers are websites that provide anonymity by appearing as the originating communicator when communicating with the intended destination. In the investigation of the Guelph matter, court documents filed by the Commissioner of Canada Elections indicate that the information regarding the true originator was kept by the proxy server for only a short period of time, thus allowing the originator to communicate anonymously with the voice broadcasting vendor.
Disposable cell phones
Disposable cell phones can be used to prevent the identification of a caller. There are also applications that allow cell phone users to create temporary telephone numbers that can be used, both for calls and text messaging, without leaving a trace. In the Guelph investigation, court documents filed by the Commissioner indicate that a disposable cell phone was used to communicate with a voice broadcasting vendor under a false identity.
3. Investigation Challenges 27
C. Limitations with
Criminal Code means of obtaining information
Threshold to be met to obtain a production order
The
Criminal Code allows investigators to obtain a search warrant or a production order from a judge to compel individuals or entities to provide or produce certain documents or data in their possession to the investigator. Production orders are used as a less intrusive alternative to search warrants, under appropriate circumstances. Under subsection 487.012(3), the order will not be granted unless the informant (in Elections Canada’s case, the investigator) can show that he or she has reasonable grounds to believe that an offence has been committed. The informant must also have reasonable grounds to believe that the documents or data sought will provide evidence respecting the commission of the offence, and that the person who is the subject of the order has possession or control of the documents or data. Thus, an investigation must have made significant progress and solid evidence must exist before a production order can be sought from the courts.
Lack of industry standards in the data retention policies of telecommunications companies
There are no industry standards on the type of telecommunications records to be kept, nor on their retention time. Some companies keep no records on telecommunications unless billing is required. Others keep records on all telecommunications made by users (e.g. date the call was made, duration, recipient’s telephone number). Some keep this information for only a few days, others for three months or longer. The length of time for which data is retained directly impacts the ability to obtain information during the investigation.
The drafting of the supporting information (called an Information to Obtain, or "ITO") required to convince a judge to issue a production order, the issuance of the requested order by the judge and the waiting for the actual production of the documents by their holder may take weeks or months, depending on the progress of the investigation and the complexity of the matter. As well, it is often necessary to go through the process of drafting an ITO, obtaining an order and receiving documents in response a number of times to pursue a given trail. That said, the chain of events and communications leading to a robocall may be very difficult, if not impossible, to establish where a company retains telecommunications records only for a very short period.
Inability to compel testimony
Individuals who are not suspected of wrongdoing often have relevant information that could assist in determining whether the
Canada Elections Act has been contravened and shed light on the circumstances of the contravention. Often, their collaboration is critical at the early stages of an investigation. However, experience demonstrates that, for a number of reasons, these individuals may refuse to collaborate with investigators, or they may only agree to do so after considerable efforts and delays that may result in the loss of key evidence.
For example, in the case of the Guelph investigation into misleading robocalls, the publicly available court records show that at least three individuals believed to have key information refused to speak with investigators. The inability to compel testimony has been one of the most significant obstacles to effective enforcement of the Act.
4. Recommendations 29
4. Recommendations
The following measures and recommendations are aimed at better addressing the risks posed by deceptive tactics to Canada’s electoral democracy. Some of the measures proposed here are administrative in nature and can be implemented by Elections Canada. Most recommendations, however, require legislative changes.
Both the measures and the recommendations are based on the view that, first and foremost, the focus must be on preventing this kind of conduct from occurring. In making the recommendations, Elections Canada is also mindful of the importance of limiting, to the extent possible, the regulatory burden imposed on political entities. At the same time, however, Canadians, political parties and candidates expect Elections Canada to be able to intervene promptly and effectively in investigating potential abuses of the electoral process. The ability to do so is essential to preserving confidence in electoral democracy and can only be achieved with the appropriate legislative tools.
A. Prevention measures and recommendations
Public information on the electoral process
In order to better inform the public, Elections Canada will ensure that advertising campaigns in the next election include clear messaging on its procedures when polling sites are changed very late in the election period.
As indicated earlier, Elections Canada is responsible for managing polling locations and ensuring that changes are communicated to electors. This communication is done through the mailing of new voter information cards or, if it is too late for such a mailing, through public announcements in the media and the posting of an election worker at the door of the old polling site.
Evidence suggests that Canadians do not understand the respective roles of Elections Canada and political parties in providing information about where and how they can vote. Indeed, 64% of electors thought it appropriate for political parties and candidates to provide them with this information.
48 The responsibility of Elections Canada as regards the voting process needs to be clarified. Means must also be taken to reduce the risk of electors being given inaccurate information by candidates or parties, or worse, being deceived by callers impersonating Elections Canada officials. In preparing for the next election, the agency will therefore foster greater public awareness of its procedures (in particular, the fact that the agency does not communicate with electors by telephone), as well as develop means to warn electors about misleading calls and inform them of available remedies, including how to file a complaint with Elections Canada or with the CRTC, depending on the nature of the call.
48
Phoenix, Survey of Electors, p. 5.30 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
In order to better inform political entities, Elections Canada will collaborate with other government agencies, such as the Canadian Radio-television and Telecommunications Commission, to draw attention to certain rules applicable during election campaigns.
In discussions with members of the Advisory Committee of Political Parties, many have told Elections Canada that they were not sufficiently informed of or did not fully understand the CRTC rules governing unsolicited telecommunications. Officials within the CRTC have already informally indicated a willingness to better communicate and explain these rules to political entities. Elections Canada will work with the CRTC in this endeavour.
A code of conduct for political entities
In order to increase electors’ confidence in the electoral process and in political parties, consideration should be given to the development of codes of conduct applicable to political parties, their officials, candidates, other affiliated entities such as electoral district associations, and active supporters. These codes would be developed by the parties, with Elections Canada’s assistance if required.
Another means of increasing Canadian electors’ confidence in the political process and political parties (particularly as regards political entities’ use of their personal information), which garnered a broad consensus from the panel of experts consulted by Elections Canada, is the development of a code of ethics or code of conduct
49 for political parties – one to which they would either voluntarily adhere or that could be mandated through legislation.
49
While in certain fields distinctions are made between a code of ethics and a code of conduct, for the purpose of this report, the two terms are used interchangeably unless referring to specific codes.
50
Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy, vol. 1 (Ottawa: Communication Group, 1991) (Chair: Pierre Lortie), p. 285.
51
Id., p. 286.
52
Id., p. 287.
In its 1991 report, the Royal Commission on Electoral Reform and Party Financing ("the Lortie Commission") strongly recommended that parties adopt codes of ethics as a remedy to the concern that "where incidents or allegations of misbehaviour arise, parties have been reluctant to assume responsibility for reviewing and revising the practices that gave rise to the allegations."
50 As stated by the Lortie Commission, "[a] code of ethics would establish an important organizational instrument of party governance, giving party executives and leadership a tool to manage and give coherence to the behaviour, practices and standards of the party."51 It also expressed the view that
[c]rystallizing the party’s basic values and principles in a code of ethics would be particularly valuable to party members who make difficult decisions in the competitive environment of electoral campaigns. It would enhance the incentive and inclination of party members to put the party’s long-term interest in protecting its integrity and public respect ahead of potential and illusive short-term gains.
52 4. Recommendations 31 It also insisted on the need for parties to enforce their own codes and suggested the setting up of an ethics committee to ensure compliance.32 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
In the federal sphere, this code (or codes) could be developed in collaboration with parties and, as is the case in all jurisdictions where such codes exist, bind not only the parties but also their officials, candidates, other entities and active supporters.
B. Recommendations to improve compliance
Extension of the application of privacy protection principles to political parties
In order to preserve the confidence of Canadians in the political entities with whom they deal, and in order to better protect the privacy of Canadian electors dealing with political entities, it is recommended that the
Canada Elections Act be amended to provide a mechanism by which the application of privacy protection principles governing most Canadian institutions and organizations would be extended to political parties.
The survey of electors referred to in part 2 of this report reflects the concerns of the individuals canvassed with respect to the collection and use of their personal information by political parties. More than 75% of the electors surveyed felt that they should have the right to "opt out" of communications from political entities. As well, 69% of electors disagreed with the view that it is important for political parties to be able to collect personal information on electors.
62 When asked what is more important, the right of political entities to communicate with electors or the right of electors to protect their privacy, two thirds expressed the view that preserving their privacy is of greater importance.63
62
Phoenix, Survey of Electors, p. 7.
63
Id., p. 9.
64
IRPP, Roundtable Report, pp. 5–6.
The group of experts consulted by Elections Canada through the Institute for Research on Public Policy (IRPP) were of the view that "data gathering by the parties is a good thing, as it allows them to better reach their supporter base." They also agreed that it may be time to consider extending privacy regimes to political entities. They were particularly concerned about data breaches and the lack of recourse that those affected by such breaches would have.
64
The Chief Electoral Officer shares these views and recommends that political entities become subject to the broadly accepted privacy principles set out in the National Standard of Canada entitled
Model Code for the Protection of Personal Information, CAN/CSA-Q830-96, also enumerated in Schedule 1 of the Personal Information Protection and Electronic Documents Act (PIPEDA) and reproduced in the annex to this report. These general principles govern the collection, use, disclosure and retention of records. They include requirements for accountability mechanisms; for the consent, where appropriate, of the person whose personal information is collected, used or disclosed; and for proper safeguards. This change would go a long way to reassuring electors as to the use of their personal information by political entities and to increasing the level of trust in those entities. 4. Recommendations 33
One way of regulating the privacy practices of parties while reducing what could be perceived as intrusion by the state in their internal affairs would be to require parties to obtain an assurance from an external management auditor, attesting that the party has systems in place to protect the personal information of electors and that these systems respect the principles listed in the annex to this report. A party would need this assurance to continue to receive lists of electors from Elections Canada.
This assurance would also preserve the reputation of the political party and reassure electors as to the protection given to their personal information, particularly in the wake of events that took place in the last election. However, such a regime would be impracticable for political entities who are by nature temporary: candidates, leadership contestants and nomination contestants.
In order to mitigate the risk of voter information being misused by candidates or persons involved in candidates’ campaigns, additional measures are required. It is recommended that the Act be amended so that parties that provide voter information to candidates are required to (a) take all reasonable means to restrict access to data, (b) inform the persons to whom the data is made accessible of the proper use of the data in accordance with instructions provided by the Chief Electoral Officer, and (c) demand that these persons not use or disclose the data for any other purpose, except as required by law. In case of misuse or loss by local campaigns of voter information obtained from the party, the party that provided access to the data would be liable unless it can show that it exercised due diligence in providing access to the voter information. This would be done by respecting the above requirements.
In the discussion paper published in November 2012, Elections Canada considered whether the Act should be amended to allow electors to opt out of receiving unsolicited calls from political entities by indicating this preference when registering or updating their information in the National Register of Electors.
While it is recognized that most Canadians (78%) would like to have this option,
65 the panel of experts were strongly of the view that parties should continue to be allowed to contact voters.66 It is also noted that the Telecommunications Act already provides a mechanism to deal with this issue by having one’s name added to the internal do not call list of a political entity. At this time, therefore, Elections Canada does not recommend such an amendment to the Act.
65
Phoenix, Survey of Electors, p. 7.
66
IRPP, Roundtable Report, p. 12.
New requirements governing telecommunications with electors
As a measure to reduce the risk of telecommunication devices being used to misinform electors or to mislead them as to the caller, it is recommended that the
Canada Elections Act be amended to include certain rules regarding all telecommunications with electors.
Both the CRTC’s Telemarketing Rules and Automatic Dialing-Announcing Device Rules, to which this report has previously referred, already apply to political entities with respect to some types of calls: live and automated calls for the purpose of solicitation. However, not all direct voter contacts are governed by the CRTC’s Unsolicited Telecommunications Rules. For example, live calls that are not made for solicitation purposes are excluded. Moreover, under the
34 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
Canada Elections Act
, only those communications from political parties and candidates that constitute "advertising" require a statement regarding the authorization of the party’s registered agent or the candidate’s official agent.
67
These rules now exist for advertisements in the Alberta Election Act at subsection 134(3) as amended by the Election Accountability Amendment Act, 2012. It is proposed that they apply to all telecommunications from political entities.
68
IRPP, Roundtable Report, p. 8.
Canada, House of Commons, Journals, 41st Parliament, 1st session, no. 94, March 12, 2012.
Increased reporting requirements
The following recommendation dealing with increased reporting is made to ensure that the recommended identification requirements are met and to further prevent the recurrence of deceptive communications.
In order to assist in ensuring compliance, it is recommended that the
Canada Elections Act be amended to require that political entities provide additional information regarding telemarketing services on a timely basis.
The Act should be amended to provide for increased reporting requirements, not only for political parties but for all entities (i.e. electoral district associations, candidates, third parties), regarding the use of telemarketing communication services. This change would assist in ensuring compliance with the previous recommendation regarding telecommunications with electors. Additional information should include the text of messages, dates on which they were communicated to electors, and, if requested by the Chief Electoral Officer, the telephone numbers that were contacted. A strong majority of the participants convened by the IRPP to provide their advice to Elections Canada supported increasing the disclosure requirements of political entities, "in a push for more transparency."
68
Building on a recommendation contained in a motion passed unanimously by the House of Commons on March 12, 2012,
69 and on a proposal contained in Bill C-453 (a private member’s bill introduced in the House of Commons on October 17, 2012), the agency recommends that parties and candidates also be required to advise the Chief Electoral Officer of the names and contact information of any person or entity they retain to provide voter contact services before or during an election, as soon as a contractual arrangement has been made with an outside organization (rather than possibly several months after the election). Such a requirement would also facilitate a more rapid investigation of allegations of improper calls. 4. Recommendations 35
Increase in the Chief Electoral Officer’s audit tools
The following audit mechanism is recommended to better ensure compliance with the requirements of the Act and to ensure transparency.
In order to increase transparency, it is recommended that, upon request from the Chief Electoral Officer, political parties be required to produce all documents necessary to ensure compliance with the
Canada Elections Act.
The first element of the motion passed unanimously by the House of Commons was that Elections Canada’s investigation capabilities be strengthened to give the Chief Electoral Officer the power to request all necessary documents from political parties and thus ensure compliance with the Act. This is similar to the proposal contained in the 2010 recommendations report, whereby the Chief Electoral Officer would be authorized to request that registered parties provide any documents and information that may, in the Chief Electoral Officer’s opinion, be necessary to verify that the party and its chief agent have complied with the requirements of the Act with respect to election expenses returns. This tool could be used, for example, to obtain specific documents related to voter contacts from parties, as they are not required to submit any supporting documents with their return. As discussed in the recommendations report, this authority already exists in all provincial jurisdictions.
70 This power would be available to the Chief Electoral Officer for administrative purposes, not for conducting penal investigations.
70
Election Act, R.S.B.C. 1996, c. 106, s. 276; Election Finances and Contributions Disclosure Act, R.S.A. 2000, c. E-2, s. 5; Election Act, 1996, S.S. 1996, c. E-6.01, s. 280; Election Financing Act, C.C.S.M., c. E27, s. 67; Election Finances Act, R.S.O. 1990, c. E.7, s. 7; Election Act, R.S.Q., c. E-3.3, s. 118; Elections Act, S.N.S. 2011, c. 5, s. 221; Political Process Financing Act, S.N.B. 1978, c. P-9.3, s. 16; Election Expenses Act, R.S.P.E.I. 1988, c. E-2.01, s. 6; Elections Act, 1991, S.N.L. 1992, c. E-3.1, s. 275.
C. Recommendations to improve enforcement
Prohibition against impersonating an election official
To facilitate the prosecution of individuals who deceive voters by pretending to be election officials, it is recommended that a provision be added to the
Canada Elections Act prohibiting anyone from impersonating an election officer or an employee or agent of the Chief Electoral Officer. The prohibition could also extend to impersonating a candidate, a party, or representatives of such entities.
To indicate the seriousness of this transgression, it is recommended that a person found guilty of the corresponding new offence, as well as the existing offence under paragraph 482(
b) of inducing a person to refrain from voting, be liable on summary conviction to a fine of a maximum of $50,000 or imprisonment for a maximum of two years, or both; and on conviction on indictment, to a fine of a maximum of $250,000 or imprisonment for a maximum of five years, or both. 36 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election creates a new offence for a person who, inside or outside Ontario, falsely represents himself or herself to be an employee or agent of the Ontario Office of the Chief Electoral Officer, a person appointed under the Election Act, a candidate or candidate’s representative, or an authorized representative of a registered party or registered constituency association. 4. Recommendations 37
In order to make the enforcement of the
Canada Elections Act more effective, it is recommended that the Commissioner of Canada Elections be given the power to apply to a judge for an order to compel any person to provide information that is relevant to an investigation.
As indicated earlier in the report, the inability to compel testimony is one of the most significant obstacles to effective enforcement of the Act. The Chief Electoral Officer strongly recommends that this power be given to the Commissioner to facilitate and accelerate the manner in which allegations are investigated.
While compliance with the Act is primarily ensured by way of offences, it is important to keep in mind that the Act is fundamentally of a regulatory nature. It sets out a number of rules, such as spending limits and reporting requirements, designed to establish a fair electoral process. The offences in the Act merely serve to better ensure compliance with those rules, and not to sanction conduct that is inherently reprehensible, as is the case with true criminal offences.
In other regulatory schemes, such as provincial securities legislation or the federal
Competition Act, it is not uncommon for agencies responsible for ensuring compliance and conducting investigations to have the ability to require persons to provide information by way of testimony or records. Consistent with the Canadian Charter of Rights and Freedoms, information obtained in this manner cannot be used against those who are compelled to testify. The information may nevertheless be essential in determining whether a contravention has occurred and allowing for timely and effective enforcement or corrective action.
In the electoral context, several provincial statutes grant the chief electoral officer or commissioner, as the case may be, the power to compel persons to appear before them and provide testimonial evidence or produce records. This includes New Brunswick, Nova Scotia, Quebec, Ontario, Manitoba, Alberta and Yukon.
73 Internationally, other electoral management bodies have this power. These include the Australian Electoral Commission74 and the Federal Election Commission of the United States.75
73
Section 494 of Quebec’s Election Act, R.S.Q, c. E-3.3, vests Quebec’s chief electoral officer, with respect to his or her own investigations, with the powers and immunities of a commissioner appointed under Quebec’s statute respecting public inquiry commissions (c. C-37). This includes the power described above (section 9). The same goes for the chief electoral officers of Nova Scotia (Elections Act, S.N.S. 2011, c. 5, s. 286; Public Inquiries Act, R.S., c. 372, s. 5), New Brunswick (Political Process Financing Act, S.N.B. 1978, c. P-9.3, s. 16), Ontario (Election Act, R.S.O. 1990, c. E.6, s. 4.0.1; Election Finances Act, R.S.O. 1990, c. E.7, s. 3; Public Inquiries Act, S.O. 2009, c. 33, Schedule 6, s. 33), Manitoba (Elections Act, C.C.S.M., c. E30, s. 186(5)), Yukon (Elections Act, R.S.Y. 2002, c. 63, s. 351; Public Inquiries Act, R.S.Y. 2002, c. 177, ss. 4 and 5) and Alberta (Election Act, R.S.A. 2000, c. E-1, s. 4.2 and Election Finances and Contributions Disclosure Act, R.S.A. 2000, c. E-2, s. 5, both as amended by the Election Accountability Amendment Act, 2012; Public Inquiries Act, R.S.A. 2000, c. P-39, s. 4).
74
See Commonwealth Electoral Act 1918, s. 316.
75
These powers of the Commission are set out at sections 437d (a)(3) and (4) of Chapter 14 of Title 2 of the United States code. See www.fec.gov/law/feca/feca.pdf.
The role of the Commissioner with respect to compliance and enforcement of the
Canada Elections Act is essential to ensuring a fair electoral process and preserving the democratic rights of Canadians under the Charter. Where the legitimacy of an election is questioned by allegations of breaches under the Act, it is in the public interest to uncover what took place in a manner that is as timely and effective as possible, in accordance with the rights of those that may be involved as well as the democratic rights of Canadians. 38 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election The Commissioner would be authorized to make an ex parte application to a judge to obtain an order providing that a person who has or is likely to have information regarding an investigation be examined under oath by the Commissioner or one of his or her representatives on any matter relevant to the investigation. The order could also require the person to produce documents. The examination would be conducted in private and any person required to be examined would have the right to be represented by counsel. 4. Recommendations 39
The privacy of Canadians is only minimally affected by the production of records held by telemarketers. Indeed, in most cases, the only personal information that would be disclosed is the fact that they received a call from a telemarketing firm as well as the message used by the firm.
To facilitate the enforcement of its provisions, the
Canada Elections Act should authorize the Commissioner of Canada Elections to require telecommunications companies to preserve specified records pending receipt of a production order issued by a judge.
In investigations dealing with deceptive practices, the Commissioner (or individuals acting on the Commissioner’s behalf) should have the authority to require telecommunications companies to preserve specified computer records in their possession or control when such a demand is made. This would protect the information from being disposed of by the telecommunications companies as part of their normal business practices.
Investigators could only make such demands if the Commissioner had reasonable grounds to suspect (a) that an offence involving deceptive communications with electors was (or will be) committed under the Act, (b) that the computer record is in the possession or under the control of the person to which the demand is made, and (c) that the record would assist in the investigation of the offence. A demand would not require judicial authorization but would only be valid for a limited duration (e.g. 90 days), until a production order has been obtained from a judge.
However, in order for such a mechanism to be useful, the Commissioner would need to know in advance details regarding the telecommunication service providers of candidates and political parties. Currently, this information is not available with respect to parties. With respect to candidates, it only becomes known to Elections Canada once the candidates file their financial returns, which are due four months after polling day. Accordingly, as discussed above, candidates and parties should be required to report information on their telecommunication service providers (including phone and Internet account numbers) as soon as a contract is signed or an arrangement concluded, during or before the election period.
D. Suggestions that were not pursued
Before concluding, it is worth addressing a few suggestions that were not pursued.
In the course of drafting this report, Elections Canada received a number of suggestions from parties or experts regarding means of preventing the type of situation that occurred in the 2011 general election or facilitating the detection of guilty individuals or groups. After reviewing them, some were set aside as out of scope, not practical, too complex to implement or simply not applicable in the context of the electoral process. In this context, two of these suggestions are worth mentioning.
Granting the Chief Electoral Officer the power to cancel an election or to apply to a court for it to cancel the election
The Chief Electoral Officer is tasked with administering the electoral process. His or her role is and must remain that of a neutral and impartial arbitrator. The suggestion that the Chief Electoral Officer should be authorized to apply to a court to have an election cancelled – or worse, have the power to cancel the election – would irremediably damage this arbitrator role. This is because
40 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
the exercise of such a power would require that the Chief Electoral Officer take sides by being for or against one of the participants in the election contest. Applying to a court to seek the cancellation of an election is the responsibility of those who fought in that election or who, as electors, had a stake in the election. This should remain the case.
Providing for the possibility of rewarding whistleblowers
It is already possible for anyone who believes that an offence has been committed under the
Canada Elections Act to report the matter to the Commissioner of Canada Elections, for him or her to investigate the matter as he or she deems necessary in the circumstances and to take the measures he or she considers appropriate for dealing with the offence if one was committed.
It has been suggested, however, that the probability of someone providing information on an offender is much greater if there is a financial incentive for the informer to denounce the alleged illegal act. For that reason, a whistleblower regime that provides a financial reward to the person who provides information on an illegal act is seen as a more effective deterrence measure than relying strictly on informers who denounce illegal acts for purposes other than money. The agency was referred to the whistleblower program available under the United States
Securities Exchange Act of 1934.78 Under that program, the Securities and Exchange Commission is authorized to reward the assistance and information provided from a whistleblower who knows of possible securities law violations. The legislation underpinning the program provides that the rewards are paid from a fund in which are deposited the fines imposed on offenders.
78
See "Securities Whistleblower Incentives and Protection" in Securities Exchange Act of 1934, 15 U.S.C. 78a et seq., sec. 21F.
79
http://crimestoppers.ca/donate/.
80
See section 66.1 of the Competition Act and section 27 of PIPEDA for examples of whistleblower provisions in federal law. As well, see the Public Servants Disclosure Protection Act, S.C. 2005, c. 46.
The website of the best-known Canadian whistleblower program that provides for such payments, Crime Stoppers, indicates that rewards for information that helps the police solve crimes are funded exclusively by donations from private citizens and local businesses.
79 A source of funds over which the Chief Electoral Officer would have some control would have to be generated for the payment of rewards under the Canada Elections Act. Furthermore, there is no whistleblower regime in Canadian federal legislation that provides for the payment of a reward to the whistleblower.80 The electoral process does not appear to be the best context for such a regime, as nothing indicates a lack of denunciations by participants in the electoral process or by Canadians in general. Conclusion 41
Conclusion
The recommendations made in this report are aimed at better addressing the risks posed by deceptive tactics to Canada’s electoral democracy. While Elections Canada can take some administrative measures to prevent the kind of conduct discussed in the report from occurring again, Parliament’s intervention is required to make legislative changes that will allow the agency to promptly and effectively investigate potential abuses of the electoral process.
While 80% of Canadians who gave their opinion in the Phoenix survey said they had quite a lot (48%) or a great deal (32%) of confidence in Elections Canada,
81 it can be expected that this level of confidence will decrease if significant delays in investigations (let alone a lack of results) occur following repeated perceived egregious violations of the Canada Elections Act. Similarly, actions must be taken to increase Canadians’ level of confidence regarding the vital role played by political parties in our electoral democracy. The recommendations contained in this report aim to address these two issues.
81
Phoenix, Survey of Electors, p. 26.
In our view, some of these recommendations are of particular importance in this context.
The authority of the Commissioner of Canada Elections to compel witnesses to testify or to produce documents with prior judicial authorization would go a long way in accelerating the investigation process, particularly at the start, when facts need to be clarified. This is a vital tool in the application of regulatory provisions, and one that already exists in federal legislation. The Commissioner strongly supports this recommendation.
As well, we share the view of Canadians and of the experts we consulted in the preparation of this report that political parties should be required to pay greater attention to the protection of electors’ personal information. There do not appear to be any public policy reasons for excluding political parties from the application of the privacy protection principles governing most Canadian institutions and organizations. These principles should be extended to political parties. This could be accomplished through an assurance provided by an external management auditor. However, regardless of the means chosen, the application of these principles should be a pre-condition to the party continuing to receive lists of electors from Elections Canada.
Other recommendations have also been made to deal with the particular issue of communications with electors. They include the addition of a new offence prohibiting anyone from impersonating an election official. As well, the Commissioner should have the authority to require telecommunications companies to preserve specified records pending receipt of a production order. Political entities should also be required to provide timely information regarding their contractual arrangements with telecommunications, Internet service and telemarketing service providers, to the extent that these arrangements are to be in effect during election periods. Finally, in line with the motion adopted by the House of Commons in March of 2012, we reiterate the recommendation made in our previous recommendations report that, upon request from the Chief Electoral Officer, political parties be required to produce all documents necessary to ensure compliance with the Act.
42 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
Means must be given to Elections Canada to address deceptive practices such as those that occurred during the 41st general election. These practices undermine the electoral process, to the detriment of all participants. In this context, however, it is important to keep in mind that legislative measures alone cannot prevent improper conduct from taking place. All participants in the electoral process have a responsibility to act in a manner that respects and promotes democratic values and the rule of law.
Annex 43
Annex
The principles that follow are set out and further discussed in Schedule 1 to the
Personal Information Protection and Electronic Documents Act.
Principle 1 – Accountability
An organization is responsible for personal information under its control and shall designate an individual or individuals who are accountable for the organization’s compliance with the following principles.
Principle 2 – Identifying Purposes
The purposes for which personal information is collected shall be identified by the organization at or before the time the information is collected.
Principle 3 – Consent
The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.
Principle 4 – Limiting Collection
The collection of personal information shall be limited to that which is necessary for the purposes identified by the organization. Information shall be collected by fair and lawful means.
Principle 5 – Limiting Use, Disclosure, and Retention
Personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law. Personal information shall be retained only as long as necessary for the fulfilment of those purposes.
Principle 6 – Accuracy
Personal information shall be as accurate, complete, and up-to-date as is necessary for the purposes for which it is to be used.
Principle 7 – Safeguards
Personal information shall be protected by security safeguards appropriate to the sensitivity of the information.
Principle 8 – Openness
An organization shall make readily available to individuals specific information about its policies and practices relating to the management of personal information.
44 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election
Principle 9 – Individual Access
Upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate.
Principle 10 – Challenging Compliance
An individual shall be able to address a challenge concerning compliance with the above principles to the designated individual or individuals accountable for the organization’s compliance.
